Hunter v. Cleveland Co-operative Stove Co.

Berry, J. This is an action for the determination of an adverse claim to certain lands. The plaintiff’s title is that of statutory assignee of Wilhelmina S. Douglas, under an assignment made by her for the benefit of creditors, on March 3, 1879, (when she owned the property in fee,) and filed in the proper clerk’s office on March 4th, following. Defendant’s adverse claim is based upon the alleged lien of a judgment confessed by said Douglas in its favor. The “statement” for confession was made and filed with the clerk of the court on March 4, 1879, and on -that day the clerk made entries in his docket showing that the judgment bore date March 3, and was docketed March 4, 1879. The trial court finds that the judgment bears date. March 4, 1879, but that it was in fact indorsed on the “statement” and entered in the judgment-book, in October, 1879, and not before. Until the indorsement or entry is made there is no judgment, (Wells v. Giescke, 27 Minn. 478,) and until there is a judgment there can be no valid docketing. Hence, (if the finding of the court was competent,) as a matter of fact, at the time when the assignment was perfected, the defendant’s judgment was not in existence, and of course no lien upon the lands; and as plaintiff as assignee took whatever the assignor had at the time of the assignment, it follows that he took the fee free from any such lien. But it is said that the finding was not competent, because the judgment and docket entries are records of the district court, and as such import absolute verity, and cannot be collaterally contradicted. Ferguson v. Kumler, 25 Minn. 183, is cited in support of this proposition. That was an action between the immediate parties to a judgment sought to be attacked; as to them, the record was held to be conclusive as against a collateral attack. Dayton v. Mintzer, 22 Minn. 393, (also cited,) rests upon analogous grounds. In the case at bar the plaintiff is a stranger to the alleged judgment, — just as much so as would be one of the creditors whom lie represents, — and hence he is not estopped or in any way bound by it. 1 Greenl. Ev. § 532. Under the statute, as assignee, he takes and holds the assigned property “in trust for the benefit of creditors” of the assignor. Hence it is his plain duty to protect and defend it, and, so far as lies in his power, to make it available to the payment [511] of the creditors’ clainjis. If, after he has taken the lands under the assignment, the records of a court are so manipulated as to show a judgment lien upon the assigned property at the time of the assignment, and such records are false, there being no such judgment lien at that time, it is the assignee’s duty to protect the property by removing the cloud which the false records raise. He cannot move in the action or quasi action in which the alleged judgment lien was obtained, for he is not a party to it; neither has he succeeded to the rights or liabilities of any party to it. As respects the judgment, there is no privity between him and either party to it. Mann v. Flower, 26 Minn. 479; and see Bennett v. Whitcomb, 25 Minn. 148; Vose v. Morton, 4 Cush. 27; Freeman on Judgments, § 162. Nevertheless, there must be some way in which he can have it adjudicated that his title to the land is paramount to the lien of the defendant’s judgment, notwithstanding the appearance of the record to the contrary, for otherwise his case would be the inadmissible one of a clear legal right without a remedy. He must therefore be able to attack the false record in some way. Possibly, if it were necessary for him to have the record amended so as to accord with the facts, he might, upon an order to show cause, or by some other method, (though not exactly by a motion in the action itself,) apply to the court for the correction of the record. Balch v. Shaw, 7 Cush. 282. But it is not necessary for his purposes that the record should be amended. If the parties to the judgment are satisfied with it as it stands, he may well decline to interfere with it. His concern is that his title be adjudged paramount to the lien apparently created by the false record. We see no reason wdiy this may not be done in the present action, without any correction of the record. It is an action to determine defendant’s adverse claim. The answer sets up the judgment, and the reply the facts which go to show that the record is false. An issue as to the validity of the apparent lien is thus-distinetly raised in the pleadings. The facts set up in the answer, and found by the court, also show that, as respects the plaintiff, the record is not only false, but in law fraudulently false, though, as the court finds, there may have been no moral fraud. That fraud vitiates everything is a rule without exception, and which applies to a judgment as well as to [512] an ordinary contract. Steph. Ev. art. 46. Why may it not also apply to the false and fraudulent record of a judgment ? and why, in an action like the present, may not a party injured by such record have it adjudged to be false and fraudulent as respects him, and thereby secure just and appropriate relief, without disturbing a record with which he has no further concern, save as it clouds his title? We see no good reason to the contrary. It is true that the record of a judgment is stated by high authority to be conclusive evidence of the fact of the rendition of the judgment, and of all the legal consequences resulting from that fact, whoever may be the parties to the suit in which it is offered in evidence. 1 Greenl. Ev. § 538. But, in our opinion, this statement is too broad when sought to be applied to an attack upon the record by a stranger, upon the ground that it is as to him false and fraudulent. Such an attack may, in a case like this at bar, be made in a collateral action. See McIndoe v. Hazelton, 19 Wis. 567, and Edson v. Cumings, 17 N. W. Rep. 693, and cases cited. This disposes of the substance of the defendant’s appeal. Judgment affirmed.